146 Ind. 99 | Ind. | 1896
Appellant and appellee were opposing candidates for the office of township trustee at the November election, 1894, and appellee was declared elected to said office. At the proper time appellant filed a statement of the grounds of contest with the county auditor, as required by section 6314, Burns' R. S. 1894 (4758, R. S. 1881). And on November 20 the auditor issued a notice to the board of commissioners, naming Samuel King, Ezekial Y. Robbins, and James W. Knox, as the members thereof to meet on November 30, at the courthouse, to hear and determine the case of the appellant xr. this appellee, as well as four other contested election cases. This notice was served by the sheriff on the persons named therein on said day. The auditor also issued the proper notice to appellee, which was served on him. The board of commissioners did not meet on the 30th of November, the date fixed by the auditor.
On December 3, 1894, the board of commissioners,
“1. That said board did not acquire jurisdiction of said cause for the reason that no notice of the filing and pendency of said contest was served on two members of said board.
“2. That said board did not meet at the time stated in the notice to appellee.
“3 That said board did not meet in pursuance of any notice by the auditor, served on the members thereof, and did not meet at the time fixed by the auditor in the notice served' on one of the members of said board, the said Daniel King.
. “4. That said boaMv of commissioners assumed jurisdiction of said proceedings by virtue of their being in session at their regular December session, and by force or virtue of no notice or summons convening them in special session.
The errors assigned call in question the action of the court below in sustaining said motion.
It will be observed that the only question presented is whether the board of commissioners had jurisdiction over the subject of the action.
It is a general rule that statutes providing for contesting elections should be liberally construed in order that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections. Hadley v. Gutridge, 58 Ind. 302. This rule of construction is to be kept in view in the determination of the question presented by the appeal.
It is shown by the record that appellant complied with all the requirements of the statute, and was entitled to have his action against appellee tried. The cause of the failure of the board to meet at the time fixed by the auditor is fully shown, but whatever the cause may have been, it is evident that appellant was not responsible therefor. \
The notice to the board was served on King and Eobbins, who were then members of the board, and on Knox, who had been a member, and was claiming to hold until December 3, the first day of the Decern
It is not the service of the notice that gives the board jurisdiction when they meet in special session. If the auditor issues a notice to them, fixing the time and place to meet, and they waive the service of the notice by appearing, no one can successfully complain of the want of service on the commissioners. Jussen v. Board, etc., 95 Ind. 567, 573; State, ex rel., v. Board, etc., 104 Ind. 123, 129; Prezinger v. Harness, 114 Ind. 491, 494; White v. Fleming, 114 Ind. 560, 574.
The better practice is for the notice to contain the names of the members of the board, but if it states their names incorrectly, or names the wrong persons, and the legal members of the board attend, the special session will be lawful. The fact that the commissioners, Bond and Stitt, were not served with a notice issued by the auditor is not material, if the board of commissioners, when they tried this case, had jurisdiction in other respects.
The other reasons assigned by appellee in his motion to dismiss, present a more difficult question. The record shows that the board was prevented from meet
Original jurisdiction to try contests for township offices is vested in the board of commissioners. It was the legislative intent to compel a speedy trial and determination of this class of cases, and for that reason it was provided by section 6316, R. S. 1894 (4760, R. S. 1881), that the auditor should call a special session of the board of commissioners when a statement of contest was filed.
We are of the opinion that when the auditor has issued the notice to the board of commissioners and the contestee, required by section 6316 (4760), supra, and said contestee has been served, and the board of commissioners fail to meet in such special session, and the auditor does not call another special session to try said cause before the next regular session of the board, that said cause xnav be tried at such regular session. And if all of said contests are not disposed of at such regular term, it is the duty of the auditor to call a special session under the provisions of section 6316 (4760), supra, to try the same. If this is a correct
. It has been held that where the law fixes the time and place for holding a court of inferior jurisdiction, the failure to meet at the time and pi ace designated will, ordinarily, in the absence of a controlling statute, result in a lapse of that particular term of court. Loesnitz v. Seelinger, Treas., 127 Ind. 422, 427. In such case, however, all the pending business remains in said court for trial at the next regular term. Even under this rule, if the special term to meet on November 30 lapsed on account of the failure of the board to meet on that day, then the board had jurisdiction to try said cause at the regular December term.
The trial extended beyond the time fixed for the regular term of the board, but this did not render the judgment either void or voidable, but the same was valid under the provisions of section 1442, R. S. 1894 (1379, R. S. 1881). That section provides that, if at the expiration of any term of court the trial shall be progressing, said court may continue its sitting beyond such time * * * and in such case the term shall not be ended until the cause shall finally have been disposed of by the court. This section is applicable to the board of commissioners when sitting as a court in the trial of a cause.
On December 12, the last day of said regular session, if there were any other election contests except the one on trial not disposed of, it was the duty of the auditor to call a special session of the board under the provisions of section 6316 (4760), supra, for the trial thereof.
Appellee contends that “the nunc pro tunc entry should be disregarded by this court. That while courts have the power to modify the judgments and
So far as we have set out what appears from the mine pro time entry made by the board of commissioners, we have no right to disregard it. The board of commissioners, in the trial of this case, was governed by the rules of law obtaining in the circuit court and had the same power to make and correct its entries. Section 6317, Burns’ R. S. 1894 (4761, R. S. 1881); Hadley v. Gutridge, supra.
There is nothing before us showing that the board falsified its records, or brought into the record by means of the nunc pro tunc entry any proceeding except such as took place, or any papers except those that were filed. The presumption is that the entry was made upon proper evidence, and that it states the facts as they occurred in said cause.
It follows that the court erred in sustaining the motion to dismiss.
Judgment reversed, with instructions to overrule said motion and for further proceedings in accordance with this opinion.